Secretary for Justice v. Nones Carmelita Galay

CAAR 15/2021

[2022] HKCA 1081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 15 OF 2021

(ON REVIEW FROM HCCC NO 129 OF 2021)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.With leave granted by Poon CJHC on 11 October 2021, the Secretary for Justice applies for a review of the sentence imposed on the respondent of 4 years and 11 months’ imprisonment by Deputy High Court Judge Bruce (the judge)  in respect of a series of thefts over a protracted period of valuable personal items belonging to her employer with a total value of nearly $15 million.

2.At the conclusion of the hearing, we granted the application, set aside the sentence and substituted it with a term of imprisonment of 6 years and 4 months.  We said we would hand down our reasons for doing so in due course.  These are our reasons.

The admitted facts

3.The facts as outlined to the judge and admitted to by the respondent were as follows.  The respondent worked as a domestic helper for a very wealthy couple.  She had been in their employ for about 10 years and was a close and trusted employee of the family.  She stole valuable personal items belonging to the husband and wife between May 2018 and September 2019, most of which she pawned either by herself or through her niece (D2)  and cousin (D3).  She also gave a quantity of the items to her sister to hold on her behalf.

4.The case arose as a result of a routine inspection by the police at a pawnshop in July 2019.  The police noticed suspicious pawn records concerning the respondent and on 4 September 2019 they visited the home of the couple to further investigate the matter.  The couple confirmed their ownership of the pawned items discovered by the police and denied giving them to the respondent.  As a result, the respondent was arrested for stealing from her employers and a search of her room recovered additional property belonging to the wife and a quantity of pawn tickets in the names of D2 and D3.  It was later admitted by D2 and D3 that they pawned the stolen items for the respondent and returned the pawn tickets and all the money received to her.

5.The offences to which the respondent pleaded guilty were as follows.

6.Between 17 June 2018 and 27 July 2019, the respondent pawned a total of 8 necklaces, 7 bangles, 11 pairs of earrings, a single earring, 2 bracelets, a 50-gramme gold bar, a 187-gramme gold bar, 10 rings and 31 gold coins, all belonging to the wife.  The items had been variously pawned at five different pawnshops for which a total of 25 pawn tickets were issued.  The total value of the stolen property was $6,082,000.  A value could not be ascertained in respect of one item which was a diamond gold ring that had been pawned by the respondent on 10 June 2019.

7.The respondent received the sum of $688,850 in cash for the pawned items.  The wife had to pay $891,160.50 to redeem some of the stolen items, but the rest, consisting of 9 pairs of earrings, a diamond gold ring, a necklace, 2 bangles, 5 rings and a bracelet, could not be redeemed. (Count 1).

8.Between 27 July and 11 August 2019, the respondent pawned at a pawnshop two watches belonging to the husband.  The total value of the watches was $200,000 and the respondent received the sum of $17,000 in cash from the pawnshop.  The watches were unable to be recovered.  (Count 2).

9.Between 1 June 2019 and 4 September 2019, the respondent stole a watch, 2 bangles, 7 earrings and a necklace, all belonging to the wife.  The items were recovered by the police when they searched the respondent’s room on 4 September 2019.  (Count 3).

10.After the arrest of the respondent, on 5 September 2019, the respondent’ sister returned a bag containing 23 necklaces, 3 bracelets 11 pairs of earrings, a single earring, a brooch, 11 pendants, 5 rings, 3 watches, 2 bangles, lai see packets that had contained $4,000 cash, Chanel jewellery with a total value $120,000, and costume jewellery with a total value of $3,000, all belonging to the wife.  After the respondent had stolen the items she passed the bag containing the items to her sister to hold on her behalf.  The total value of the stolen items was $4,814,400.  Except for the cash of $4,000, all of the stolen items had been recovered.  (Count 4).

11.Between 3 June 2018 and 18 February 2009, the respondent instructed D2 to pawn 6 necklaces, 6 rings, 9 bangles, 4 pairs of earrings, 2 bracelets and a pendant, all belonging to the wife.  The total value of the stolen items was $2,235,000.  A value could not be ascertained in respect of 3 bangles, 3 pairs of earrings, a necklace, 2 rings and a pendant. The two pawnshops that pawned the items paid a total of $240,250 in cash to D2 who gave all the money to the respondent.  The wife had to pay $342,124.50 to redeem the stolen items.  (Count 5).

12.Between 13 May 2018 and 2 June 2019, D1 instructed D3 to pawn 3 bangles, 7 bracelets, 2 pairs of earrings, 3 single earrings, a pendant, 2 necklaces and 4 rings, all belonging to the wife.  The total value of the stolen items was $1,265,000.  The wife had to pay $217,730.50 to redeem the stolen items.  (Count 6).

13.The respondent admitted that she stole all the items particularised in the above counts.

14.The admitted facts also included a factual outline of the case against D2 and D3 for handling the stolen property.  It is worth noting aspects of the facts of the case against D2 and D3 as they reveal the duration and frequency of the stealing by the respondent of the property belonging to the couple. 

15.D2 pawned a necklace, 2 rings and 2 bangles on 3 June 2018 (Count 7); 4 bangles on 16 October 2018 (Count 8); a bangle, 2 bracelets and 4 necklaces on 4 November 2018 (Count 9); and 4 rings, a bangle, 3 pairs of earrings, a necklace and a pendant on 25 November 2018.  (Count 10).

16.D3 pawned 2 bangles on 11 May 2018 (Count 11); a bangle, a bracelet and a pair of earrings on 15 July 2018 (Count 12); 2 bracelets and a ring on 30 September 2018 (Count 13); 4 rings, 2 bracelets, a necklace and 3 earrings on 23 December 2018 (Count 14); a bracelet on 5 May 2019 (Count 15); and a pair of earrings on 2 June 2019.  (Count 16).

The victim impact statement

17.The wife gave a comprehensive victim impact statement which was submitted to the court.  She lamented that the scope and magnitude of the respondent’s systemic deceit and dishonesty left her feeling betrayed and violated.  She explained that the respondent was treated as a member of the family and enjoyed their complete trust and affection.  As a consequence of family’s bond with the respondent, the incident had left her emotionally shattered and wary about trusting anyone in such circumstances again.

18.The respondent worked for the family for 10 years, who was described by the wife as always kind and considerate.  The respondent also cared for the wife when she was unwell, suffering from various serious medical ailments.  The wife explained that as a result of this incident her overall health had deteriorated and she needed professional counselling, having suffered from anxiety for which she had been prescribed with medication. 

19.As to how the respondent was able to steal so many valuable items over a long period of time, the wife said it was because she trusted the respondent implicitly.  When she found something missing, the respondent would often imply that the wife had misplaced the item because of the her forgetfulness, and she readily believed her.  On other occasions, the respondent would insinuate that one of the other helpers had taken the item or when she pressed the respondent about the matter the items would reappear.  She explained that she was able to recover some of the stolen items from pawnbrokers paying the principal and interest of over $1 million.  Many of the items stolen were gifts from her husband and they had significant sentimental value to her. 

20.The wife also included in her victim impact statement matters that she had uncovered, which were refuted by the respondent through her counsel.  She found a number of photographs that the respondent posted on Facebook and other websites depicting, (i)  the respondent going on holiday with the couple’s suitcases; (ii)  the respondent lying on her daughter’s bed, displaying thousand dollar notes; (iii) the respondent dressed in her daughter’s clothes as well as wearing her jewellery; (iv)  the respondent’s son holding up her husband’s expensive camera; (v)  and the respondent with her boyfriend in which the respondent was wearing clothing and accessories belonging to her and her daughter.  There were also pictures of houses, land, and cars, which the wife claimed the respondent had bought in the Philippines for herself, her family and her boyfriend, Elton, who worked in Hong Kong.

The mitigation

21.At the time of sentencing, the respondent was 47 years of age with a clear record.  She was born and raised in the Philippines. After graduating from high school, she worked as a domestic helper both in Singapore and Hong Kong.  She left Hong Kong to start a family and returned in 2010 to work as a domestic helper for the couple.  At the time of her arrest, she had been with the family for about 10 years and was earning $4,500 per month.

22.The respondent was married and had a 16-year-old son.  Her husband and son lived in the Philippines.  She was the main breadwinner of the family. 

23.It was submitted on behalf of the respondent that at the commencement of her employment with the couple her mother was diagnosed with diabetes and her condition deteriorated in 2014 when she suffered kidney failure.  As a result, her mother was hospitalised and she needed to pay for the medical expenses that had been incurred.  The mother later needed regular dialysis treatment, for which the monthly cost was several times the respondent’s salary.  It was submitted that in order to pay for her mother’s medical expenses, the respondent borrowed money from various loan companies and friends.  She began stealing property from her employer in order to repay the loans and to continue paying for her mother’s medical expenses.

24.Counsel for the respondent accepted that the total value of the property stolen was $14,603,200, but contended that the actual loss incurred by the couple was about $1,451,005.50.  He noted that the respondent understood that the court was bound to impose a custodial sentence and he had explained the sentencing guidelines to her.  He asked the judge to take into account: the respondent’s early plea of guilty and her acceptance that she was fully responsible for the thefts that had been committed; the actual loss incurred by the couple; the stolen items had been mainly pawned which would inevitably result in a majority of them being recovered; the respondent’s clear record and the unlikelihood that she would commit further offences; and the circumstances in which the crimes were committed where the respondent needed to pay for her mother’s medical expenses. 

25.The mother had passed away on 8 November 2019 with the immediate cause said to be the end stage of renal disease.  Counsel for the respondent produced a death certificate and a medical abstract from the Fresenius Kidney Care dated 31 October 2020, which stated that the mother had been on hermodialysis treatment from February 2014 and died in November 2019 at her residence. 

26.No evidence or documents were adduced in respect of the loans entered into by the respondent in order to pay for the mother’s medical expenses, or of the further payments for the mother’s medical treatment.

27.Counsel for the respondent challenged the statement of the wife in respect of the matters she uncovered as revealed by the photographs on Facebook and other websites.  He said that he was instructed that the daughter of the couple gave clothes to the respondent, and the expensive camera was taken out of rubbish by the respondent when the family moved house.  Of the pictures of the houses, land and cars, counsel submitted that neither the respondent nor her family had property in the Philippines. Nor had she provided any funds to Elton to obtain a property.

28.In respect of these other matters raised by the wife in her victim impact statement, prosecuting counsel stated that her statement was to show the impact on her and nothing else.  He explained that no further charges had been pursued in relation to the matters mentioned by the wife.  He also explained that the prosecution were not in a position to verify the matters depicted in the photographs as they concerned properties in a foreign jurisdiction.

The reasons for sentence

29.Having extensively reviewed the offences and the facts of the case, the judge discussed the mitigation advanced on behalf of the respondent. 

30.A key aspect of the mitigation was the respondent’s motive for stealing the items.  It had been contended by counsel for the respondent that all of the money realised from the pawning of the stolen items was to pay for the medical expenses of the respondent’s mother or to repay loans the respondent borrowed for that purpose.[1]  It was further contended that the respondent was genuinely remorseful for her conduct.[2] 

31.The judge mentioned that there was another dimension to the respondent’s conduct in that she “roped in” D2 and D3 to assist her in pawning the stolen property.  However, he thought that the respondent was also remorseful for having got D2 and D3 into serious trouble.[3] 

32.The judge discussed the relevant sentencing principles for cases of theft involving a breach of trust.  He referred to R v Barrick[4] and R v Clark[5], and to a line of Hong Kong cases that had followed these two English decisions, in which guidelines had been laid down for cases of this type.

33.In the course of his lengthy reasons for sentence, the judge addressed the matter of the recovery of the stolen items. He noted a substantial quantity of the property was recovered, but listed six factors that negatived this matter as a mitigating factor.  First, the efficiency of the police in identifying the property that had been pawned. Secondly, the payment of money by the wife to pawnbrokers to recover the property.  Thirdly, the recovery of the bag of stolen property as a result of the sister returning the property to the victims on 5 September 2019.  As to this matter, he said it was reasonable to infer that this was done because it became apparent that the respondent had been arrested.  Fourthly, the property found in the respondent’s room when it was searched by the police.  The fifth and sixth factors concerned the voluntary assistance by D2 and D3 in identifying where certain property had been pawned and in recovering the property from the pawnshops.[6]

34.A significant feature in the judge’s list of factors is the absence of any cooperation by the respondent with the police in recovering the property.[7] We note that the respondent did not assist the police investigation, while D2 and D3 did do so, voluntarily disclosing their involvement and revealing where the property had been pawned.  The judge mentioned that at a time when D2 and D3 were not suspects, they approached the wife and offered their assistance.  They had informed the wife of the property which she did not know had been stolen and therefore enhanced the scope of the recovery of the stolen property.[8]  The judge also made the point, when discussing the sentence for D2 and D3 that, “[t]he present case provides an example of where the thief clearly used two handlers as a means of distancing herself in the pawning of some of the items of stolen goods.”[9]  The relevance of this statement by the judge will be apparent later in our judgment as it appears he disregarded this matter as an aggravating factor.

35.In his discussion on the impact of a crime on its victim, the judge emphasised that the sentencing jurisprudence of Hong Kong recognised the importance of victims of crime and the impact of crime on a victim as a relevant consideration.[10] He correctly explained that the rules of evidence operate in sentencing procedures which he later referred to when assessing the mitigation and the statements made by the victim.  He next addressed the application of the sentencing principles to the theft offences.  He found that the respondent was a person who was in a position of trust, and accepted as true that the wife would have felt violated and betrayed by the thefts.  He rightly pointed out that common experience was that the relationship between the employer and employee in this form of employment reposes “a great deal of trust on the part of the employer and this was plainly violated.”[11] 

36.The judge considered that a starting point for analysis in sentencing the respondent was the value of the stolen property. However, he noted that one of the sentencing factors identified in R v Barrick was the manner in which the stolen property or its proceeds were used by the respondent, which the respondent claimed was to pay for her mother’s medical expenses and the loans she obtained for that purpose.  He expressed the view that the application of the proceeds was cogent mitigation and plausible, “taking account of the principles of evidence which govern the evaluation of facts in issues of sentencing”.[12]  This was contrary to the victim’s statement in which the wife asserted that the respondent used the proceeds for the acquisition of property and vehicles in the Philippines either for herself or her boyfriend.  The judge then turned to address this matter.  He stated that he enquired of prosecuting counsel as to whether he challenged the assertions in mitigation made by the respondent to which he answered in the negative.[13]  That is not entirely correct as prosecuting counsel explained to the judge that they were not in a position to verify the status of the properties depicted in the photographs as they were in a foreign jurisdiction.[14]  The judge concluded that he was not satisfied according to the criminal standard that the use of the funds by the respondent was to acquire property or vehicles. 

37.Having rejected the victim’s statements concerning the use to which the proceeds of the stolen items were put by the respondent, the judge proceeded on the basis that the mitigation advanced by the respondent was plausible and uncontradicted: HKSAR v Cheung To Ming[15].  As a consequence, the judge accepted that the respondent “had a deep anxiety about the medical position of her mother at the time of her thefts and applied the money realised by the pawning of the stolen goods for that purpose.”[16]  However, there was no evidence of any loans or payment of medical expenses by the respondent for the mother’s medical condition. 

38.The last matter the judge mentioned before determining the sentence to be passed on the respondent, was her conduct in recruiting D2 and D3 to pawn some of the stolen items.  The judge said, “I am firmly of the view that she shamelessly used the 2^nd accused and the 3^rd accused.  I deeply suspect lies were told.  The 2^nd and 3^rd accused were exploited.”[17]  However, the judge said he would treat this exploitation by the respondent as mitigation in relation to D2 and D3, but would not take it into account against the respondent because he was only permitted to sentence her for the theft offences and not the conduct which occurred after the thefts. 

39.We found this reasoning by the judge to be wrong in principle and contrary to the sentencing guidelines.  The judge himself took into account the use of the stolen items after the thefts, and some of the factors mentioned in R v Barrick relate to conduct or matters after the offence has been committed.  As stated by the judge in his reasons for sentence, the present case provided an example of where a thief clearly used two handlers as a means of distancing herself in the pawning of some of the stolen items.[18] The respondent’s conduct in pawning the stolen items and arranging others to assist her in this regard was part and parcel of the theft offences.  It was a deliberate and calculated act on her part to distance herself from the numerous thefts that she had committed.

40.The final phase of the judge’s reasons for sentence concerned his determination of the sentences for each count and the total sentence to be imposed after applying the totality principle.  He applied the sentencing guidelines in HKSAR v Ng Kwok Wing[19], taking into account the value of the items stolen and the corresponding starting point.

41.The judge adopted a starting point of 5 years and 6 months’ imprisonment on Count 1; 3 years’ imprisonment on Count 2; 1 year’s imprisonment on Count 3; 5 years’ imprisonment on Count 4; 4 years’ imprisonment on Count 5; and 3 years’ imprisonment on Count 6.  He noted that each count occurred on separate occasions; the sentencing guideline for theft amounting to $15 million attracted a starting point of 10 years’ imprisonment; and the aggregate of the sentences was 21 years and 6 months’ imprisonment. After applying the totality principle, he considered the appropriate overall starting point was 8 years’ imprisonment.[20]

42.The judge explained that the respondent should be sentenced on the basis of what she had stolen, and that she should receive no allowance for the fact that a substantial quantity of the property was recovered.  He made the point that recovery of the property only partially mitigated the loss to the victims and in any event the victims had been deprived of their property from the time of taking to the time of recovery.  He also added that in order to recover some of the pawned items the victims had to expend money to redeem them.  We agree with the judge’s comments, which may have been influenced by the fact that the respondent had not provided any assistance in the recovery of the stolen items.[21]

43.As the respondent had entered her guilty pleas at the earliest opportunity, the judge proposed to discount the overall starting point by 33%.  He also proposed to enhance the discount by a further 5% to reflect the mitigation, “including the previous good character of [the respondent] and the motivation which I find underlay the taking of the property, that is, for the provision of medical treatment for the mother of [the respondent].”[22]

44.The judge said that the discount would have been greater, but he had scaled it back to a small extent because of two factors in relation to the impact on the victims.[23] First, the impact of the thefts on the victims and the sense of violation and betrayal felt by the wife and most likely by the husband.  Secondly, while there had been substantial recovery of the stolen items, albeit at a cost to the victims, some of the property was lost.[24] 

45.After discounting the individual starting points by 38%, the sentences for each count were as set out in the following table.

Count	Amount stolen	Starting point	Sentence after 38% discount
1	$6,082,000	5 years 6 months	3 years 4 months
2	$200,000	3 years	1 year 10 months
3	$6,800	1 year	7 months
4	$4,814,400	5 years	3 years 1 month
5	$2,235,000	4 years	2 years 5 months
6	$1,265,000	3 years	1 year 10 months
Total		21 years 6 months	13 years 1 month

46.The judge adjusted the sentences to accord with an overall starting point of 8 years’ imprisonment with a discount of 38% for the resultant sentence of 4 years and 11 months’ imprisonment.  He ordered that the sentence on Count 4 be served partly consecutively to that on Count 1 to the extent of 1 year and 7 months and the balance of the sentence on Count 4 to be served concurrently with Count 1 and the sentences imposed on the other counts to be served concurrently with Count 1.

The grounds of review

47.The applicant argued that the sentence imposed on the respondent was wrong in principle and manifestly inadequate because of the following grounds.

(1)  The judge erred in departing from the sentencing guidelines without justification (Ground 1);

(2)  The judge failed to sufficiently consider the aggravating features and the overall culpability of the respondent (Ground 2);

(3)  The judge erred in giving a further discount for the respondent’s “previous good character” in addition to the one-third discount for a timely plea of guilty (Ground 3); and

(4)  The judge erred in giving an excessive discount on account of the respondent’s personal circumstances (Ground 4).

Departure from the sentencing guideline

The applicant’s submissions

48.Ms Claudia Ng, for the applicant, submitted that the individual starting points adopted by the judge in respect of Counts 1, 4, 5, and 6 were “not in accordance with the guidelines” because the judge did not “arithmetically” calculate the sentence in proportion with the guidelines set out in Ng Kwok Wing[25] and there was no justifiable reason for him to do so.[26]

The respondent’s submissions

49.Mr Franco Kuan, who appears with Mr Ivan Suen for the respondent, submitted that the applicant’s complaint was misconceived.  He advanced the following arguments.  First, it was trite law that the courts are not required to adopt an arithmetic approach for the offence of theft.[27]  He argued that if there was any improper departure from the guidelines as suggested by the applicant, the departure was in fact unfavorable to the respondent.  He contended that the actual starting points adopted by the judge for Counts 2 and 3 were higher than a strict arithmetic approach would warrant.[28]  He supported his argument by setting out the following calculations in the table below.

Count	Amount Stolen	Arithmetic starting point suggested by the applicant	Starting point adopted by the judge
1	$6,082,000	6 years 3 months	5 years 6 months
2	$200,000	1 year 7 months	3 years
3	$6,800	2-3 weeks	1 year
4	$4,814,400	5 years 8 months	5 years
5	$2,235,000	4 years 3 months	4 years
6	$1,265,000	3 years 3 months	3 years
Total		21 years 2-3 weeks	21 years 6 months

50.Secondly, it was submitted that there was no significant departure from the sentencing guidelines in the present case.  The starting points adopted by the judge for the counts were within the bands of Ng Kwok Wing, which were not meant to be applied inflexibly as a straitjacket.

51.Mr Kuan referred to HKSAR v Lee Qi Lin Irene[29], in which the total value of the goods stolen by the defendant was between $1 million and $2 million.[30]  The trial judge adopted 3 years’ imprisonment as the starting point which he reduced to 2 years and 8 months for the defendants’ clear record.[31]  The Court of Appeal agreed with the trial judge’s sentencing decision and dismissed the appeal.[32] 

52.Mr Kuan submitted that the length of imprisonment imposed in respect of Counts 5 and 6 in the present case was more severe than that in Lee Oi Lin Irene. 

Failure to consider aggravating features and overall culpability

The applicant’s submissions

53.Ms Ng submitted that the totality of 8 years’ imprisonment did not reflect sufficiently the overall criminality of the respondent.[33]  She argued that this was strongly supported by the following matters:

(a)  As the value of stolen property of $15 million would attract a starting point of 10 years’ imprisonment, the starting point in the present case should have been closer to such a term because the total value of stolen property was $14.6 million;[34] and

(b)  There were a number of aggravating factors that were not adequately reflected, if at all, in the sentence.  They were:[35]

(i)  multiple stealing spanning over a year which added to the overall culpability;

(ii)  premeditation on the part of the respondent and as accepted by the judge, she had used two handlers, D2 and D3, as a means of distancing herself in pawning some of the stolen property;[36]

(iii)  the wife was traumatized and still suffering physically and mentally when the victim impact statement was obtained about two years after the case was discovered;[37] and

(iv)  most of the stolen property were gifts given by the husband to his wife that had significant sentimental value to her.[38]

54.Ms Ng submitted that the additional thefts particularized in Counts 2 to 6 had added to the overall culpability of the respondent, and hence the order of a partially consecutive sentence in respect of Count 4 alone was wrong in principle, and indicated that insufficient regard had been paid to the overall culpability of the respondent by the judge.[39]

The respondent’s submissions

55.Mr Kuan submitted that the judge had already accounted for the aggravating features and the overall criminality of the case by reference to the following matters:[40]

(a)  The six counts occurred on separate occasions over a substantial period of time.[41]

(b)  The overall value of the items stolen was more than $14.6 million (as some items could not be properly monetized).[42]

(c)  The wife’s feelings were violated, and she felt betrayed. While there was substantial recovery of the stolen properties, some of them were lost.[43]

(d)  Notwithstanding a substantial amount of the stolen goods were eventually recovered by the victims, no reduction was given by the judge for this matter.[44]

56.Mr Kuan submitted that the consequences of the thefts on the family was taken into account as an aggravating factor.  He noted that the judge accepted the wife’s statement, in which she said that she felt hurt and betrayed.[45]  He said it could not be said that the judge had not considered the impact on the victim.[46]

57.Mr Kuan submitted that it was undisputed that the value of the stolen goods across the charges amounted to less than $15 million and that the starting point should be less than the statutory maximum sentence of 10 years.  He argued that maximum penalties should only be deployed in the “most truly exceptional cases, which are so serious that it is difficult to imagine a yet more serious example of the offence.”[47]

58.The use of the money or property dishonestly taken was specifically identified in R v Barrick as a relevant factor.[48]  The respondent’s previous good character and desperation to support her late mother entitled her to an extra 5% discount on the sentence.[49]  The judge’s findings reflected a low level of culpability than the more serious cases of this kind, and on that basis the judge was entitled to impose a total sentence of 8 years’ imprisonment. The sentence was therefore not manifestly inadequate. 

Reducing the sentence for previous good character

The applicant’s submissions

59.Ms Ng submitted that the respondent did not have a “previous good character”, thus the judge erred in giving a further 5% discount on the sentence.  She relied on the following matters:

(a)  There was no evidence, and it was not the respondent’s mitigation, that she was of positive good character.  By “previous good character”, the judge could only have meant the respondent’s previous clear record.[50]

(b)  The Court of Appeal had repeatedly emphasized that a one third discount was the “high water mark”, and that remorse and a previous clear record were subsumed in such a discount.  Further, an offender facing multiple offences, in particular those of a similar nature, on the first occasion, should not be treated as a first offender committing a single offence.[51]  This was precisely the case of the respondent.  Therefore, the giving of a further discount on this basis was wrong in principle. 

The respondent’s submissions

60.Mr Kuan contended that the focus of the additional discount was because of the respondent’s need to pay for the medical treatment of her mother.[52]

61.In relation to what constitutes “previous good character”, Mr Kuan submitted that HKSAR v Ngo Van Nam[53] did not go so far as to say that a finding of “previous good character” was to be subsumed into the one-third discount.  He argued that the applicant was wrong in narrowly construing what gives rise to “previous good character”.  He submitted that the following matters laid the foundation for an additional discount on the sentence:[54] the respondent had supported her family (as a single parent raising a 16-year-old son);[55] the respondent had been a diligent, kind and considerate domestic helper for 8 to 9 years for the victims without incident; and the respondent had not committed any offences prior to 2018[56] (before she had to repay the medical loans).[57] 

62.Mr Kuan submitted that the fact that the sentence on Count 4 was imposed consecutively in part instead of concurrently suggested that the judge had properly and carefully addressed all relevant principles regarding the multiplicity of charges.[58]

63.Finally, Mr Kuan submitted that the judge also mentioned that it was in light of the severity of the crimes that he did not award a higher discount.[59]

Excessive discount for personal circumstances

The applicant’s submissions

64.Ms Ng submitted that the judge erred in giving an excessive discount on account of the respondent’s personal circumstances.  She also contended that financial difficulty and personal circumstances were not valid mitigating factors when serious offences are involved.[60]  She contended that the judge failed to give sufficient weight to the impact on the victims.[61]  The judge’s error was exacerbated when he commented that he was minded to give a discount higher than 5%.[62]  In all circumstances, an overall 38% discount was inappropriate and unduly generous.[63] 

The respondent’s submissions

65.Mr Kuan submitted that the judge had an overriding discretion in discounting or enhancing a sentence[64] and the matters raised by the applicant were thoroughly considered by the judge.[65] 

Discussion

66.The six theft offences to which the respondent pleaded guilty involved a serious breach of trust.  What made this a particularly bad case was the close and trusted relationship the family had with the respondent and the sustained level of exploitation by the respondent of her special relationship with the family.

67.The seminal case on sentencing for breach of trust cases is R v Barrick, in which Lord Lane CJ, giving the judgment of the Court of Appeal, characterised a typical breach of trust case as follows:[66]

“The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family.”

68.After a review of a line of authorities, Lord Lane explained why the sums involved in this type of crime would be a useful guide in determining an appropriate sentence to be imposed upon an offender:[67]

“It is, we appreciate, dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they may be helpful to sentencers generally, and may lead to a little more uniformity, we make the following suggestions.

In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide.  …”

69.Having suggested appropriate terms of imprisonment for a range of sums involved, Lord Lane concluded by noting that the circumstances of cases will vary almost infinitely and set out the following matters that may warrant consideration when sentencing an offender:[68]

“The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i)  the quality and degree of trust reposed in the offender including his rank; (ii)  the period over which the fraud or the thefts have been perpetrated; (iii)  the use to which the money or property dishonestly taken was put; (iv)  the effect upon the victim; (v)  the impact of the offences on the public and public confidence; (vi)  the effect on fellow-employees or partners; (vii)  the effect on the offender himself; (viii)  his own history; (ix)  those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

70.The Hong Kong courts have followed the principles laid out in R v Barrick but initially questioned the strict application of the guidelines to cases in Hong Kong: The Queen v Ying Lai-chau[69]. However, some 12 years after R v Barrick the sentencing guidelines were revised in R v Clark.  It is to be noted that during this period the maximum sentence for theft in England and Wales was reduced from ten to seven years’ imprisonment,[70] while the maximum sentence in Hong Kong remained at ten years’ imprisonment.[71]  As explained by the Court of Appeal in R v Clark[72], the review of the guidelines was necessary because of the effect of inflation and other factors:

“The effect of inflation since Barrick means that approximately £17,000, £85,000 and £170,000 are the present day equivalents of respectively £10,000, £50,000 and £100,000, the figures mentioned in Barrick. Also since Barrick, as we have said, the maximum sentence for simple theft has been reduced from ten years to seven years. On the other hand, the scale of so-called white collar dishonesty in the form of theft and fraud has, in the experience of the members of this Court, increased, both in complexity of execution and in the rewards which can be dishonestly achieved. It follows that, as recent authorities have shown, there are cases which properly attract longer sentences than were specifically contemplated in Barrick itself.

…

In the light of all these considerations, we make the following suggestions. We stress that they are by way of guidelines only and that many factors other than the amount involved may affect sentence. Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between £17,500 and £100,000, will merit two to three years; cases involving sums between £100,000 and £250,000, will merit three to four years; cases involving between £250,000 and £1 million will merit between five and nine years; cases involving £1 million or more, will merit 10 years or more. These terms are appropriate for contested cases. Pleas of guilty will attract an appropriate discount. Where the sums involved are exceptionally large, and not stolen on a single occasion, or the dishonesty is directed at more than one victim or group of victims, consecutive sentences may be called for.”

71.The Court of Appeal in HKSAR v Cheung Mee Kiu[73] specifically applied the guidelines laid down in R v Clark by converting the financial bands to their Hong Kong dollar equivalent as follows:

“(a)  over $15 million – 10 years or more;

(b)  $3 million to $15 million – 5 to 9 years;

(c)  $1 million to $3 million – 3 to 4 years;

(d)  $250,000 to $1 million – 2 to 3 years;

(e)  less than $250,000 – less than 2 years.”

72.However, in Ng Kwok Wing[74], the guidelines were revised to ensure that the terms of imprisonment for the financial bands were consistent with each other.  They are as follows:

“(a)  involving $15 million or more: 10 years or above;

(b)  involving $3 million to $15 million: 5 to 10 years;

(c)  involving $1 million to $3 million: 3 to 5 years;

(d)  involving $250,000 to $1 million: 2 to 3 years; and

(e)  involving $250,000 or less: below 2 years.”

73.We are of the view that the judge did not approach the sentencing of the respondent correctly and as a consequence the sentence imposed on the respondent was manifestly inadequate and wrong in principle. 

74.The judge primarily sentenced the respondent by taking an overall perspective of the case and then substantially discounting the sentence with little or no justification.  He addressed the aggravating factors by purportedly setting them off against the mitigating factors which was the wrong approach.  It resulted in the aggravating factors not being properly considered, nor properly reflected in the sentence.  In sentencing an offender, method is all important, and if the sentencing process is done in an unconventional or unprincipled manner, the end result will invariably be wrong.

75.In our view, the judge should have dealt with each offence in chronological order.  In doing so, he should have determined an appropriate starting point for the offence and enhanced the sentence for any aggravating factors, including any specific enhancement for the respondent’s repeat offending.  He then should have discounted the notional sentence for any mitigating factors.  After determining the sentence for each offence, he should have then proceeded to consider the totality of the sentences in order to arrive at an overall sentence that was just and proportionate.  As governed by the principle of parsimony, the sentence should be no more severe than is necessary to justly punish the offender.  When the judge took a global approach in sentencing the respondent, he should have factored in the aggravating factors that warranted enhancement to the starting point and then discounted the notional sentence for any mitigating factors.

76.We should add that the offence of theft can be dealt with by a single charge where the property had been appropriated on more than one occasion.  This is allowed where the offending is a “continuous offence” or where there is a “general deficiency”.[75]  When a single offence is charged on the “continuous offence” principle it is usually on the basis that a number of items have been stolen from the same victim over a period of time in such a way as to form one continuous transaction.  In taking such approach there is a limitation in sentencing an offender because the sentencing court will be bound by the head sentence of 10 years’ imprisonment for a single offence of theft.  We can see from the sentencing guidelines for breach of trust cases that for large sums involved the sentence suggested is a term of imprisonment of 10 years or more, which exceeds the head sentence for a single offence of theft.  This explains why the Court of Appeal in R v Clark when fixing the revised guidelines stated that where the sums involved were exceptionally large, and not stolen on a single occasion, or directed at more than one victim or group of victims, consecutive sentences may be called for.  This is an important consideration that needs to be borne in mind when an offender is charged with this type of offence.  In the present case, the respondent was charged with and convicted of six counts of theft, which occurred over a period of 15 months.

77.We turn to consider the sentence that should be imposed on the respondent.  In our view, there were a number of aggravating factors in the present case that warranted enhancement of the sentence.  Aggravating factors are facts or circumstances that increase the level of severity of a criminal activity, and include any harmful or adverse consequences that flow from the crime.  They were as follows.  First, the respondent had carefully planned and executed the thefts and disposal of the property that she had stolen.  Secondly, the criminality involved multiple thefts over a period of 15 months.  Thirdly, the respondent distanced herself from the thefts by using D2 and D3 to pawn the stolen items.  Fourthly, the respondent covered up her thefts by lying to the wife when the respondent was queried about missing items.  Fifthly, the trauma and effect on the husband and wife, particularly the wife, who was emotionally shattered by the incident.  Sixthly, some of the items that have not been recovered were of sentimental value to the wife. Seventhly, the victims had to pay $1.45 million to recover a number of the items.

78.We have no hesitation in characterising the respondent’s conduct as devious and manipulative.  Behind the veneer of a trusted and faithful employee, she systematically planned and executed a series of thefts of numerous valuable items from her employer.

79.Whilst the judge acknowledged various aggravating factors, it would appear he gave little, if any, consideration or weight to them in his determination of the individual sentences.  He was also not very precise or clear as to the impact the aggravating factors had in the determination of the overall sentence.  The approach of a sentencing court when dealing with multiple offences was explained by this Court in Secretary for Justice v Yu Chun-hing:[76]

“61. With respect to the Judge, we found he did not adequately reflect in the sentence the individual gravity of the offending in each charge as well as the overall gravity of the offending in all the charges. As a general rule, when a sentencing court is confronted with an offender who has committed multiple offences over a prolonged period it is best to conduct a sequential evaluation of the offending by reference to the chronological order of the offences or to any connection between the offences due to the nature of the offence, the involvement of the same victim or the offences arising from the same event.

62.   In the present case, the gravity of the respondent’s offending increased in severity as he repeated his sexual abuse against multiple victims, and together with any other aggravating factor or factors that may have been present, this should have been reflected in the sentence of each offence as they were progressively addressed. Each time an offence is repeated that is a matter that should be taken into account together with other factors that may be present. It is therefore important that a sentencing court look at the specific offending and determine a specific sentence before embarking on an overview of the overall criminality involved in arriving at a total sentence.”

80.The mitigating factors that were given credence by the judge were, in our view, either unmeritorious or undeserving of any credit because of the seriousness of the offending involved.  The judge found that all the money realised from the pawning of the stolen items was to pay for the medical expenses of the respondent’s mother and therefore constituted a cogent mitigating factor.  However, there was simply no evidence that the proceeds of the stolen property had been used to pay the mother’s medical expenses or loans taken out for that purpose.  The only evidence before the court was that the mother suffered with a renal disease and had required dialysis treatment since 2014, and as a result of her condition the mother passed away in November 2019. 

81.Although there was a lack of evidence to support the respondent’s submissions, prosecuting counsel limited his objection on the basis that he could not verify these matters.  Mr Kuan made the valid point that had prosecuting counsel challenged these matters the respondent would have called evidence in support of them.  However, he accepted that as for these matters it would be for the sentencing court to determine what weight, if any, should be placed on them.

82.It seems to have been overlooked that a substantial proportion of the stolen property had not been pawned as they had been held by the respondent or her sister.  This is a relevant consideration in respect of whether the respondent stole all these items for the sole purpose of paying for her mother’s medical expenses.  Furthermore, had it not been for the police intervention in this case, the respondent would more than likely have continued stealing and accumulating property from the victims. 

83.In the circumstances of this case, particularly given the substantial amount of money that was realised from pawning some of the stolen property and the lack of evidence as to the use of the money, it was unrealistic to attribute all the money to the payment of the mother’s medical expenses or repayment of loans for that purpose.  It has been held by this Court that financial difficulty and personal circumstances are not relevant as mitigation where serious offences occur, no matter how tragic or desperate the situation of the accused: HKSAR v Chu Kwok-yui[77].  This was an exceptionally bad case of theft. 

84.This Court has repeatedly stressed that family circumstances are not strong mitigation and should be disregarded, when serious crime is involved.  The fact of the matter is that many people face financial difficulties but do not resort to crime.[78]Where the family circumstances may be a relevant factor, it would have to be exceptional, based on sound and reliable information, and of a nature that called for the court to be merciful.  We do not find any sound or compelling justification for the allowance the judge gave the respondent for her financial difficulties due to her mother’s medical expenses.  There was, in our view, a significant lack of concrete or reliable information on this issue.

85.A key part of the sentencing process is to hear from the victim in order to properly understand the nature and circumstances of the crime that has been committed, and how the offending has impacted upon the victim at the time of the offence or subsequently.  Hearing from the victim is an important consideration in determining the gravity of the offence and the culpability of the offender: Secretary for Justice v Chan Kin Pong Bonny[79].

86.The statement from the wife revealed the extent of the hardship and anguish that she and her husband have gone through, and continue to go through, because of the respondent’s dishonest and deceptive conduct.  The cruel reality of betrayal by a trusted person can have a devastating effect on the person betrayed and that is why there is an added degree of culpability in theft cases involving a breach of trust.

87.Where the judge fell into serious error was in respect of the additional discount of 5% on the starting point that he gave the respondent because of her previous good character and her motivation of taking the property for the provision of her mother’s medical treatment.  Neither of these matters were valid mitigating factors given the unclear evidential foundation on which they were made and the serious nature of the offending involved.  The respondent was entitled to a one third discount for her timely guilty plea, but to no more than that.  The judge seems to have ignored his own findings that the respondent did not cooperate or assist the police with its investigation and that she used and exploited D2 and D3 to distance herself from the thefts.

88.We note that the counts in the indictment were not recited in chronological order, although there was considerable overlap between them.  The order in which the counts were placed may have been partly influenced to distinguish the counts involving D2 and D3 respectively.  However, as a matter of good practice, the prosecution should ensure in the future that an indictment containing multiple offences in respect of a single accused should list the offences in chronological order, unless there is good reason not to do so. 

89.In the present case, we would address the counts in chronological order when sentencing the respondent.  In assessing the gravity of the offending and when adopting the following starting points, we have taken into account the circumstances under which each offence has taken place, particularly the aggravating factors that we have already mentioned, including the impact this crime has had on the victims.

90.We first deal with Count 6 with a total value of $1,265,000 for the stolen items.  We adopt a starting point of 3 years and 3 months’ imprisonment which we enhance by 3 months to 3 years and 6 months’ imprisonment for the fact that the wife had to pay $217,730.50 to redeem the stolen items.

91.Next is Count 5 with a total value of $2,235,000 for the stolen items.  We would adopt a starting point of 4 years’ imprisonment which we enhance by 4 months to 4 years and 4 months’ imprisonment for the fact that the wife had to pay $342,124.50 to redeem the stolen items.

92.Next is Count 1 with a total value of $6,082,000 for the stolen items.  We adopt a starting point of 6 years’ imprisonment which we enhance by 6 months for the fact that the wife had to pay $891,160.50 to redeem some of the stolen items.

93.Next is Count 3 with a total value of $6,800 for the stolen items.  We adopt a starting point of 1 year’s imprisonment.

94.Next is Count 2 with a total value of $200,000 for the stolen items.  We adopt a starting point of 3 years’ imprisonment.

95.Lastly is Count 4 with a total value of $4,814,400 for the stolen items.  We adopt a starting point of 5 years and 6 months’ imprisonment which we enhance by 6 months to 6 years’ imprisonment for the repeat offending.

96.As we have already indicated, we would not give any further discount for the respondent’s personal circumstances in light of the gravity of her offending.  In our view, she was entitled to a one third discount for her guilty plea and no more.

97.The resultant sentence for each count is set out in the table below.

Order	Count	Date	Amount stolen	Starting point and enhancements	Sentence after one third discount
1	6	13 May 2018 – 2 June 2019	$1,265,000	3 years 6 months	2 years 4 months
2	5	3 June 2018 – 18 February 2019	$2,235,000	4 years 4 months	2 years 10 months
3	1	17 June 2018 – 27 July 2019	$6,082,000	6 years 6 months	4 years 4 months
4	3	1 June – 4 September 2019	$6,800	1 year	8 months
5	2	27 July – 11 August 2019	$200,000	3 years	2 years
6	4	4 September 2019	$4,814,400	6 years	4 years
Total			$14,603,200	24 years 4 months	16 years 2 months

98.After determining and considering the sentences for the individual counts and making an overall assessment of the case, including the aggravating factors,[80] we adopt a global starting point of 10 years 6 months’ imprisonment which we reduce by one third for the respondent’s guilty plea to 7 years’ imprisonment.  We indicate that there was no other meaningful mitigation that warranted a further reduction to the respondent’s sentence and that throughout the sentencing process we have borne in mind the totality principle.

99.Where a sentence is judged to be manifestly inadequate or wrong in principle upon review, it is appropriate to have regard to the respondent’s anxiety and distress by the imposition of a heavier sentence and allow some discount to the sentence.  However, this will depend on the particular facts and circumstances of the case: Secretary for Justice v Pastana Carvalho Andreza Narely[81]. Given the substantial increase in the respondent’s sentence, we are prepared to discount the sentence we should impose by a further 8 months, thus reducing the sentence to 6 years and 4 months’ imprisonment.  We would arrive at that sentence by making the sentences on Counts 1 and 2 consecutive to each other and the rest of the sentences on Counts 3, 4, 5 and 6 concurrent with the consecutive sentences on Counts 1 and 2.

Conclusion

100.For the reasons we have given, we allowed the application.  We agreed that the judge did not pay sufficient regard to the gravity of the offences as reflected by the aggravating factors, and wrongly discounted the sentence by an additional 5% for matters that were either unmeritorious or undeserving of consideration in light of the seriousness of the respondent’s offending.

101.The sentence imposed by the judge was both wrong in principle and manifestly inadequate.  After a determination and consideration of the sentences for the individual counts, and taking an overall view of the gravity of the offences and the culpability of the respondent, we considered the resultant sentence should be 6 years and 4 months’ imprisonment, having discounted the starting point of 10 years and 6 months’ imprisonment by one third for the respondent’s guilty plea and by a further 8 months for the fact that a heavier sentence has been imposed on review.

102.We therefore set aside the sentence of 4 years and 11 months’ imprisonment and substituted it with a total sentence of 6 years and 4 months’ imprisonment.

103.Finally, we express our gratitude to both counsel for their very helpful submissions.

Ms Claudia Ng, SPP of the Department of Justice, for the applicant

Mr Franco Kuan, instructed by Lo, Chan & Leung, Solicitors, assigned by the Director of Legal Aid, and Mr Ivan Suen, instructed by Lo, Chan & Leung, Solicitors, on a pro bono basis, for the respondent